Knowledge will forever govern
ignorance, and a people who mean to be their own governors,
must arm themselves with the power knowledge gives.
A popular government without popular information or the means of
acquiring it, is but a prologue to a farce or a tragedy or perhaps
both. -- James
Madison

Parallel Report to the Human Rights Committee
on the occasion of the consideration of the
Sixth Periodic Report of Germany
during the Committee’s 106 th Session
submitted by:

The German Institute of Human Rights should monitor human rights in
Germany.

Defamation should be decriminalized.

I refer to the 6. report according to Article 40 of the International
Covenant on Civil and Political Rights, reporting to the Human Rights
Committee (CCPR) dated 31. March 2010 (1).
The EU Fundamental Rights Agencysuggested to
contact the Council of Europe (2),
answering a complaint on lack of Freedom of information in Germany (3).
The GRECO (Group of States against corruption) did not observe that access
to informations laws are missing in 5 states in Germany (N).

1. Access to public documents is a human right according to Article 19
CCPR

The UN Special Rapporteur on the promotion and protection
of the right to freedom of opinion and expression reported e. g. in E/CN.4/1998/40,
28 January 1998 and E/CN.4/2000/63,
18 January 2000 and A/HRC/14/23
20 April 2010that access to
public documents is a human right.

"The right to access information held by public authorities is a
fundamental human right which should be given effect at the national
level through comprehensive legislation (for example Freedom of
Information Acts) based on the principle
of maximum disclosure, establishing a presumption that all
information is accessible subject only to a narrow system of
exceptions."

The "General Comment No. 34 on Article 19 of the ICCPR" confirms
this (5):

"18. Article 19,
paragraph 2 embraces a general right of access to information held by
public bodies. Such information includes all records held by a public
body, regardless of the form in which the information is stored, its
source and the date of production."
"19.(...) States parties should also enact the necessary procedures,
whereby one may gain access to information, such as by means of freedom
of information legislation."

Germany tried to remove the human right of access to public documents and
other human rights (13)
from the Draft
General
Comment No. 34 on Article 19 ICCPR (see page 17 reference
14). Decriminalization of defamation and abolition of prison sentences
(Article 49) is objected. Access to public documents is not considered a
fundamental right according to the German Basic Law. The ICCPR has only the
rank of a law. Therefore it is suggested to remove access to public
documents from the ICCPR.

2. Five states (Länder) violate the human right of access to public
documents

[More then 125
states with 5.9
billion i. e. 84 % of the world population adopted either FOI laws
or constitutional provisions (I).
Citizens in 5 states in Germany with half of the population lack this
human right.]

3. The rank of the ICCPR is not respected in praxis

Paragraph 118 of the State report reads: "CCPR is part of German justice
system as federal law. Therefore it is binding for federal states." But this
is not respected by German administration and courts.

Therefore German courts may decide against human rights if there is a
conflict, e. g. the highest Court in the German land Rhineland-Palatinate
LG Mainz (1 QS 25/98) stated that the court can not give access
to documents (as the European Convention of Human Rights would demand),
because it is the parliament, which would have to give this right. This
court expresses here that they are not allowed to do what human rights would
say.

[The federal law of Freedom of Information has too many exceptions and
violates international principle of maximum disclosure. Comparison with
laws from 111 other countries places Germany
on 105th rank, i. e. 5.9 billion people have better access laws(J).]

Judges at administrative courts are hired, promoted and supervised by
the executive power and are not independent according to Article 14
CCPR (11).

In approx. 50 States access to public documents is found in the
constitution. Approx. 90 states have adopted
access to information laws. In Europe basically Belarus and 5 German
states are missing. After India in 2005, China in 2008, Russia in 2010 and
Brazil soon (BRIC countries) adopt laws on access to information only some
countries in Africa and the Middle East are missing.

Germany's report should have been given 1.
April.2009. The report was registered 18. April 2011 at UN.

In many states – e. g. for the European Convention of Human Rights -
international conventions have a higher rank compared to laws e. g.
Austria, Switzerland and Norway (12).

The Human Rights Commissioner of the Council of Europe suggested to give
the German Human Rights Institute the task to monitor human rights in
Germany (F).

Recommendations summarized:

Germany has to adopt access to informations (ATI) laws in all 16
federal states and improve federal ATI law to meet international
standards

Withdraw reservation on Article 19 of CCPR

The rank of CCPR in German law must be respected and should be
improved.

The recommendations of the Human Rights Commissioner
of the Council of Europe, e. g. educate administration and judges in
international law i. e. CCPR should be done.

HRC ignored this report about access to information but praised the
high human rights standards in EU

Human Rights Committee CCPR/C/DEU/CO/6
(2012): Concluding observations on the sixth periodic report of Germany,
adopted by the Committee at its 106th session, 15 October to 2 November

"The State party should widely disseminate the Covenant, the two
Optional Protocols to the Covenant, the text of the sixth periodic report,
the written responses it has provided in response to the list of issues
drawn up by the Committee, and the present concluding observations so as
to increase awareness among the judicial, legislative and administrative
authorities, civil society and non-governmental organizations operating in
the country, as well as the general public".